How will the police respond to Riley?

The new cell phone search case, Riley v. California, is methodologically quite important for the future of the Fourth Amendment. At the same time, my former DOJ colleague Mark Eckenwiler argues that the case will have less of a direct impact in practice than many believe:

The unanimous decision on Wednesday, however, will not mean the end of cellphone searches, said Mark Eckenwiler, a former deputy chief of the Justice Department’s computer crime section. He said that Chief Justice Roberts’s opinion allows searches when the owner of the phone gives consent, and that “police will now, as a routine matter, ask for consent.”

“And an extraordinary number of arrestees will give that consent,” Mr. Eckenwiler said, “just as people consent today to all sorts of searches of cars and containers, very much against their personal interest.”

Mr. Eckenwiler, now a lawyer with the firm of Perkins Coie in Washington, said, “It’s hard to see how this is going to kill some investigations.”

“I don’t think there will be difficulty in getting a warrant in appropriate cases,” he said. “It’s certainly going to increase the paperwork load for prosecutors and the courts.”

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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